Criminal Code Amendment (Terrorist Organisations) Bill 2003

Bills Digest No. 174 2002-03

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

For present purposes, it is sufficient to note
that the present Bill and the Hizballah Bill both seek to amend
Part 5.3 of the Commonwealth Criminal Code. Part 5.3 deals with
terrorism. It contains provisions creating terrorist act offences
(Division 101), terrorist organisation offences (Division 102) and
financing of terrorism offences (Division 103). Division 102 also
contains provisions which enable regulations to be made listing an
organisation as a terrorist organisation in certain
circumstances.

As originally introduced in the Security
Legislation Amendment (Terrorism) Bill 2002, the 'listing'
arrangements would have enabled the Attorney-General to proscribe
an organisation if he or she was satisfied on reasonable grounds
that:

the organisation or one of its members had
committed or was committing a terrorist offence, irrespective of
whether a charge had been laid or conviction obtained, or

the declaration was reasonably appropriate to
give effect to a United Nations Security Council (UNSC) decision
that it was an international terrorist organisation, or

the organisation posed a danger to the
security or integrity of the Commonwealth or another country.

(1) The Attorney‑General may make a
declaration in writing that an organisation is a proscribed
organisation if the Attorney‑General is satisfied on
reasonable grounds that one or more of the following paragraphs
apply in relation to the organisation:

(a) if the organisation is a body corporate the
organisation has committed, or is committing, an offence against
this Part (whether or not the organisation has been charged with,
or convicted of, the offence);

(b) a member of the organisation has committed,
or is committing, an offence against this Part on behalf of the
organisation (whether or not the member has been charged with, or
convicted of, the offence);

(c) the declaration is reasonably appropriate to
give effect to a decision of the Security Council of the United
Nations that the organisation is an international terrorist
organisation;

(d) the organisation has endangered, or is
likely to endanger, the security or integrity of the Commonwealth
or another country.

These arrangements were substantially altered
in the Bill's passage through Parliament. First, the ministerial
declaration process was replaced with a regulation making power,
based on the satisfaction of the Attorney-General as to the matters
outlined above. The regulations would have been subject to the usual
disallowance procedure set out in the Acts Interpretation Act
1901(4) but contained an additional safeguard.
Proposed subsection 102.1(4) provided that regulations would not
take effect until the disallowance period had
expired.(5) Second, the 'danger to security or
integrity' formula was removed from the regime.

The Government amendments in the Senate
allowed for both Ministerial and UNSC listing and took this
form:(6)

terrorist
organisationmeans:

(a) an
organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act occurs); or

(b) an organisation that is specified by the
regulations for the purposes of this paragraph (see subsections (2)
and (4)); or

(c) an
organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (3), (5) and
(6)).

(2)
Before the Governor-General makes a regulation specifying an
organisation for the purposes of paragraph (b) of the definition of
terrorist organisation in this section, the Minister must be
satisfied on reasonable grounds that the organisation is directly
or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not the
terrorist act has occurred or will occur).

(3)
Before the Governor-General makes a regulation specifying an
organisation for the purposes of paragraph (c) of the definition of
terrorist organisation in this section, the Minister must be
satisfied on reasonable grounds that:

(a) the
Security Council of the United Nations has made a decision relating
wholly or partly to terrorism; and

(b) the
organisation is identified in the decision, or using a mechanism
established under the decision, as an organisation to which the
decision relates; and

(c) the
organisation is directly or indirectly engaged in, preparing,
planning, assisting in or fostering the doing of a terrorist act
(whether or not the terrorist act has occurred or will
occur).

(4)
Regulations for the purposes of paragraph (b) or (c) of the
definition of terrorist organisation in this section may not take
effect earlier than the day after the last day on which they may be
disallowed under section 48 of the Acts Interpretation Act
1901. That section has effect subject to this
subsection.

Third, the ministerial discretion was
effectively removed, forcing a reliance on decisions, or
resolutions, by the UNSC on terrorism or terrorist organisations.
This regime was enacted and became section 102.1 of the Criminal
Code:

terrorist
organisationmeans:

(a) an
organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act occurs); or

(c) an
organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (3), (5) and
(6)).

(3)
Before the Governor‑General makes a regulation specifying an
organisation for the purposes of paragraph (c) of the
definition of terrorist organisation in
this section, the Minister must be satisfied on reasonable grounds
that:

(a)
the Security Council of the United Nations has made a
decision relating wholly or partly to terrorism; and

(b)
the organisation is identified in the decision, or using a
mechanism established under the decision, as an organisation to
which the decision relates; and

(c) the
organisation is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act has occurred or
will occur).

So, paragraph (b) of the definition of
terrorist organisation was removed, along with corresponding
subsection (2), the ministerial discretion provision. The
provisions were not renumbered.

This left one way in which a regulation could
be made listing a terrorist organisation if the Minister was
satisfied on reasonable grounds about three things. First, that the
UNSC had made a decision relating to terrorism; second, that the
organisation was identified in that decision as 'an organisation to
which the decision relates'; and third that the organisation was
directly or indirectly involved in terrorist
activity.(7)

The reason for removing 'paragraph (b)' was
stated by Senator Faulkner as follows:

In response to strong objections to the
government's proposed proscription regime we have before the
chamber now a proposal which puts forward a regime with three
alternative limbs limb 1 is an organisation found by a court to be
engaged in a terrorist act, limb 2 is an organisation which is the
subject of a decision by the United Nations Security Council that
it is an international terrorist organisation, and limb 3 is an
organisation which the Attorney- General is satisfied on reasonable
grounds is engaged in a terrorist act. Of those, limbs 2 and 3
require that the Attorney-General make a regulation and do not take
effect until the disallowance period has expired. The government
has said that such a decision would also be open to judicial
review. I indicated earlier the very serious concerns the
opposition has that the government's approach still includes an
executive discretion to proscribe
organisations.(8)

Clearly, the focus of concern was the
'executive discretion to proscribe organisations':

That proposal remains unacceptable to the
opposition and we are moving for it to be deleted. We do not
support giving such wide powers, such arbitrary powers, to any
minister of any government. We say that such powers are open to
abuse. While we do have a very strong in principle objection to
executive proscription, we have said that we are prepared to accept
listing of an organisation declared to be a terrorist organisation
by the United Nations Security Council. I want to point out that
there is a fundamental need in the war against terrorism to have
international cooperation. We say that in the same way that this
parliament and the Australian people should expect Australia to
cooperate with the United Nations committee processes in relation
to human rights issues, whether it is refugee or environmental
issues or the whole raft of other important questions, Australia
should cooperate as best as we can with the international community
and the United Nations effort to target and destroy terrorist
organisations. This is an international struggle, and if the
international community through the United Nations Security Council
declares an organisation to be a terrorist organisation we do
accept that such an organisation should be
banned.(9)

Jemaah Islamyah

Section 102.1 of the Criminal Code did not
remain in its original form for long. The Criminal Code
Amendment (Terrorist Organisations) Act 2002, which commenced
on 23 October 2002, repealed subsection 102.1(4). As a result,
terrorist organisation regulations made by the Governor-General no
longer have their operation postponed to the end of the
disallowance period. They commence on gazettal or as otherwise
specified.

The reason behind removing subsection 102.1(4)
was stated by the Attorney-General:

Under the act, in its present form, regulations
made now that list an organisation as a terrorist organisation will
not come into operation until after the parliamentary disallowance
period has ended, in 2003. This is because there are insufficient
sitting days in the remainder of the sitting schedule to satisfy
the required waiting period.

This means that the government cannot complete the
listing of a terrorist organisation such as a terrorist
organisation believed to be involved in the Bali bombing until next
year. As a result, even though there may be known members of a
terrorist organisation here in Australia, this will limit the
ability of authorities to investigate them and, if there is enough
evidence, to prosecute them, until well into 2003. This is totally
unacceptable. We need to be able to act swiftly (10)

The Bills Digest to the Hizballah Bill
contains a discussion of the reference of State powers on terrorism
to the Commonwealth under section 51(xxxvii) of the
Constitution.

In the process of referrals, and the
subsequent re-enactment of Part 5.3 of the Criminal Code under the
Criminal Code Amendment (Terrorism) Act 2003, section
102.1 was renumbered, such that paragraph (c) is paragraph (b) and
subsection (3) is subsection (2):

terrorist organisationmeans:

(a) an
organisation that is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act occurs); or

(b) an
organisation that is specified by the regulations for the purposes
of this paragraph (see subsections (2), (3) and
(4)).

(2)
Before the Governor‑General makes a regulation specifying an
organisation for the purposes of paragraph (b) of the
definition of terrorist organisation in
this section, the Minister must be satisfied on reasonable grounds
that:

(a)
the Security Council of the United Nations has made a
decision relating wholly or partly to terrorism; and

(b)
the organisation is identified in the decision, or using a
mechanism established under the decision, as an organisation to
which the decision relates; and

(c) the
organisation is directly or indirectly engaged in,
preparing, planning, assisting in or fostering the doing of a
terrorist act (whether or not the terrorist act has occurred or
will occur). [ ]

Finally, it is necessary to trace through the
machinery provisions in section 102.1 which govern the duration and
expiry of regulations made under subsection 102.1(2):

(3)
Regulations for the purposes of paragraph (b) of the
definition of terrorist organisation in
this section cease to have effect on the second anniversary of the
day on which they take effect. To avoid doubt, this subsection does
not prevent:

(a) the
repeal of those regulations; or

(b) the
cessation of effect of those regulations under subsection (4);
or

(c) the
making of new regulations the same in substance as those
regulations (whether the new regulations are made or take effect
before or after those regulations cease to have effect because of
this subsection).

(4) A
regulation specifying an organisation for the purposes of
paragraph (b) of the definition of terrorist
organisation in this section ceases to have effect
when:

(a) the
decision mentioned in paragraph (2)(a) ceases to have effect;
or

(b) the
organisation ceases to be identified as described in
paragraph (2)(b).

The
regulation does not revive even if the organisation is again
identified as described in paragraph (2)(b).

(5) To
avoid doubt, subsection (4) does not prevent:

(a) the
repeal of a regulation; or

(b) the
making of a regulation that is the same in substance as a
regulation that has ceased to have effect because of that
subsection.

(6) For the purpose of making regulations
specifying an organisation for the purposes of paragraph (b)
of the definition of terrorist
organisation in this section, it does not matter
whether the relevant decision of the Security Council of the United
Nations was made before or after 6 July 2002.

So, regulations which implement a decision of
the United Nations Security Council have a two-year sunset clause
but may cease earlier if the regulations are repealed or if the
basis for the regulations, in the decision of the United Nations
Security Council, falls away. Otherwise, the regulations can be
remade at any time.

Regulations may also provide their own time
limits or expiry dates.

Hizballah Bill

For completeness, it is also worth noting that
the present Bill was introduced into the Parliament on the same day
as the Criminal Code Amendment (Hizballah) Bill 2003. The latter is
designed to give the Government a power to 'list' organisations as
terrorist organisations provided they fit the definition of
'Hizballah External Security Organisation', or a derivative
organisation, and provided the Attorney-General is satisfied that
the organisation is directly or indirectly engaged in
terrorism.

While the Opposition has supported the
Hizballah Bill, the Government does not expect the present Bill to
pass the Parliament. The Attorney-General said in his Second
Reading Speech that:

the opposition has indicated that it will not
support the [terrorist organisation] bill.

In such circumstances, the government is
introducing a second bill, the Criminal Code Amendment (Hizballah)
Bill 2003 that will allow the terrorist wing of Hezbollah to be
listed in regulations, providing the statutory criteria for listing
is met.

This bill [the Terrorist Organisations Bill] is
intended to be complementary, not an alternative to the [Hizballah]
bill.

Together they create a legislative framework that
deals with the immediate issue of the security threat represented
by the terrorist wing of Hezbollah, and the longer term issue of
how Australia can act independently of the Security Council in
relation to our domestic criminal laws.

While we support the opposition's indication that
it will support the government's Hezbollah specific bill, the
opposition has indicated that it will continue to obstruct passage
of our first bill.

The government intend to vigorously pursue passage
of our first bill.(11)

The fate of the present Bill is yet to be
decided, so whether it could become a double dissolution trigger is
a matter of speculation. It is noteworthy, however, that four
potential double dissolution bills already exist.(12)
Should the Government wish to take all or some of these to a double
dissolution election, Parliament would have to be dissolved by 11
August 2004.(13) The latest date for a double
dissolution election is 16 October 2004.(14)

UK, US and Canada

In the United Kingdom, United States and
Canada, proscription is controlled by the Parliament or
Executive.

Under the Prevention of Terrorism (Temporary
Provisions) Act 1974 (UK) an organisation could be proscribed
either by legislative amendment or by legislative instrument. The
Secretary of State was empowered to add any organisation 'that
appears to him to be concerned in terrorism or in promoting or
encouraging it'.(15) Under the Terrorism Act 2000 (UK)
the Secretary of State is empowered to add any organisation 'if he
believes that it is concerned in
terrorism',(16) subject to an application-based power to
revoke(17) and a right of appeal to a judicial
review-based appeal body,(18) and, by leave, to a
superior court.(19)

Under the Anti-terrorism and Effective Death
Penalty Act of 1996 (US) the Secretary of State was empowered to
designate any foreign organisation 'if he finds that' it
is engaged in terrorist activity,(20) subject to a power
to revoke,(21) a codified judicial review
process(22) and disallowance by an Act of
Congress.(23)

Under the Anti-Terrorism Act 2002 (CA) the
Canadian Governor-in-Council may proscribe an organisation if
satisfied that there are 'reasonable grounds to believe' that it is
knowingly involved in terrorism or is knowingly acting on behalf of
or at the direction of or in association with such an
entity.(24) This is subject to an application based
power to revoke and a partially codified judicial review
process.(25)

Thus, in the United Kingdom, United States and
Canada, while the Executive has a primary role, supervisory control
is vested in the Judiciary (to varying degrees). Clearly, attempts
to establish effective proscription processes have had to grapple
with the need to balance the roles of the Parliament, Executive and
Judiciary.

New Zealand

The
Terrorism Suppression Act 2002 (NZ) enables organisations to be
designated as terrorist or associated entities. Among other things,
is an offence to participate in such groups or undertake financial
dealings with such groups.

The Act enables the Prime Minister to make
interim and final designations that a group is a terrorist or
associated entity. The grounds on which such designations can be
made and the procedure for making them are set out in the Act. The
designation must be publicly notified and must be notified to the
organisation if a representative of that organisation is in New
Zealand. Designations expire 3 years after they have been made
unless earlier revoked by the Attorney-General or have been
successfully challenged on judicial review grounds or have had
their operation extended via a High Court decision. In order for
the High Court to extend the operation of the designation the
Attorney-General must apply to the Court for the designation to
remain in force. The application must be served on any person the
Court directs it to be served on.

The High Court cannot make an extension order
unless the grounds set out in section 37 are made out. These
include that the Attorney-General satisfies the Court on the
balance of probabilities that the organisation is the subject of
domestic or international criminal proceedings, has been convicted,
or has acted knowingly in relation to certain principal or
ancillary terrorist offences (terrorist acts, facilitating
terrorist acts, or assisting such acts). These provisions also
extend to organisations that are, on the balance of probabilities,
wholly owned, or effectively controlled, directly or indirectly, by
such an organisation.

Northern Territory

Also, it is worth noting the struggle played
out in the Northern Territory in respect of the anti-terrorism
provisions in the Criminal Code (NT). Originally, these
provisions applied to 'proscribed organisations'. These were
identified by the Administrator, acting on the advice of the
Executive Council, with a simple parliamentary tabling
requirement.(26) Early drafts of these provisions
'contained no criteria or procedures relating to such
proscription'.(27) As enacted, they simply required, in
the opinion of the Administrator, the organisation 'has as its
object or one of its objects the use of violence to achieve its
end' or that the members have 'demonstrated a propensity to use
violence to achieve the organisation's ends'. The power to
'proscribe organisations' was strongly criticised on the basis that
it had 'potential implications for interference with a number of
civil rights'(28) and, on that basis, should be 'the
subject of impartial judicial consideration'.(29) The
response at the time was that an appeal to the courts would take a
sensitive issue out of the Parliament. It would be 'an
extraordinary, novel and dangerous precedent'(30) and
would 'politicise the judiciary'.(31) But, within a year
the issue was reviewed and, pursuant to an agreement between the
Commonwealth and the Northern Territory,(32) control was
surrendered to the courts.(33)

Item 1 repeals subsection
102.1(2) of the Criminal Code and replaces it with proposed
subsection 102.1(2). The effect of proposed
subsection 102.1(2) is that the UNSC basis for listing
terrorist organisations is replaced by the ministerial discretion
that was once proposed by the Government in the Senate.

In effect, the version of 'paragraph (b)'
of the definition, and the corresponding subsection (2), that was
removed by Opposition amendments in the Senate in June
2002,(34) is reinstated and exiting 'paragraph (c)', and
corresponding subsection (3), is removed.

In short the original proposal is reinstated
and the connection with the UNSC is severed.

Proposed subsection 102.1(4)
effectively allows a 'terrorist organisation' to be 'de-listed' if
the Minister 'ceases to be satisfied' that the organisation is
directly or indirectly engaged in or assisting in (etc) terrorist
acts. The way that de-listing works is that the Minister publishes
a declaration in the Gazette. Once the declaration is
made, the regulations cease to have effect. The Minister's
de-listing is not subject to parliamentary review ie it is not a
disallowable instrument. An organisation that has been 'de-listed'
can be re-listed [proposed subsection
102.1(5)].

The Acts Interpretation Act 1901
contains gazettal and tabling requirements that apply to
Commonwealth regulations and contains disallowance provisions.
These normally work in the following way. Regulations made under a
primary statute must be notified in the Gazette and laid
before each House of Parliament within 15 sitting days of being
made. If the tabling requirements are not complied with, the
regulations cease to have effect. There is then a further period of
15 sitting days in which a notice of motion can be given to
disallow the regulation. If either House (normally the Senate)
passes a resolution within this timeframe disallowing the
regulation, then it ceases to have effect. Disallowance can also be
deemed to have occurred. This happens if a notice of motion, given
within the 15 sitting day period, is not withdrawn or called on
within a further 15 sitting days. In this case, the regulation is
deemed to have been disallowed. In other words, the disallowance
period run for as little as 15 sitting days after tabling to as
much as 30 sitting days after tabling (if deemed disallowance
occurs).

'Concerns have been expressed that this
section [original section 51] has potential implications for
interference with a number of civil rights, which Australia has
international obligations to protect including the right to freedom
of expression, the right to freedom of association and the right to
peaceful assembly': Letter from the Prime Minister to the Chief
Minister of the Northern Territory, 17 November 1983 reproduced in
Senator Gareth Evans, 'Northern
Territory Criminal Code', Senate, Debates, 18 November
1983, Answer to Question on Notice, p. 2856.

'The proscribing of organisations under the
terrorism provision in the code is in the hands of the executive
and is thus a political decision. In our view it is inappropriate
that this be so. Such decisions should be the subject of impartial
judicial consideration': Mr Bob Collins, MLA, Legislative Assembly
of the Northern Territory, Parliamentary Record, 31 August
1983, p. 981.

Nathan Hancock
16 June 2003
Bills Digest Service
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